This Agreement (as defined below) is entered into by and between Flipview Limited, New Zealand Company Number 6802714 with offices at Auckland, New Zealand (“FlipView”, “we”, “us”, “our”) and the person agreeing to these terms or the person on whose behalf you are agreeing to this Agreement (“Customer”, “you”, “your”).

This Agreement is effective and legally binding as of the date you tick the checkbox online to accept the Agreement or, if applicable, the date the Agreement is signed by the last party to sign (the “Effective Date”). If you are accepting this Agreement on behalf of another person, such as your employer or a company, you represent and warrant that:

• you have full legal authority to bind that other person to this Agreement;
• you have read and understood this Agreement; and
• you agree, on behalf of the person that you represent, to this Agreement. If you don’t agree to this Agreement or do not have the legal authority to bind the other person, please do not tick the checkbox to accept these Agreement (or, if applicable, do not sign this Agreement).

This Agreement governs Customer’s access to and use of the Services.

Services: The “Service(s)” comprise the SaaS Service described below and the support services described below.

The SaaS Service provided by FlipView enables the Customer to allocate surveys and questionnaires to “Survey Participants” and dashboard reporting functionality to “End Users”. Once the Survey Participants complete their allocated surveys and questionnaires, the SaaS Service generates a dashboard with associated reporting for the End Users to review. FlipView reserves the right to add new features, bug fixes and enhancements to the SaaS Service from time to time by making it available on the Site, provided always that Customer will be provided with reasonable advance notice in writing. Any new feature, enhancement, addition, change or upgrade to the current SaaS Service shall be subject to this Agreement. FlipView may, from time to time, retire old features of the Service, after providing no less than 6 months advance notice in writing to the Customer (unless the Customer agrees in writing to a shorter period). The parties acknowledge and agree that this 6months notice period does not apply to third party plug in software services (e.g. newsfeed or similar) which are not material to the core performance and functionality of the Services. If after any upgrade, you prefer a retired feature, FlipView may, in its sole discretion (acting reasonably at all times) and without any obligation to do so, agree to provide the retired feature to you. You agree to ensure that your use of the Service does not violate any applicable law, including any applicable law against spamming. Customer must ensure no one uses the Site or the Services in any other manner or to violate any intellectual property rights of FlipView or third parties and shall use the Services in accordance with all applicable laws, including intellectual property laws, and any reasonable directions given by FlipView from time to time.

FlipView’s provision of the Service to you is non-exclusive. Nothing in this Agreement prevents FlipView from providing the Service to any other person.

Fees and invoicing: Your access to use the Services is granted on a subscription basis in accordance with the Pricing Schedule. You acknowledge your access to the Services may be terminated or suspended, without prejudice to FlipView’s other rights and remedies, if undisputed invoices are not paid by the due date FlipView reserves the right to adjust the fee structure from time to time, but in any event no more than once a year, provided always that there will be no adjustment to the fee structure for 24 months from the Effective Date. If FlipView chooses to modify the fee structure, FlipView will provide the Customer written notice (which may be by email) at least 90 days prior to the modifications taking effect. You must pay FlipView the Fees. We will provide you with valid tax invoices on a monthly basis prior to the due date for payment.
You must pay the Fees:

• in accordance with the payment terms in Schedule 1 of this Agreement; and
• electronically in cleared funds without any set-off or deduction.
• All invoices will be in NZD and must be paid in NZD into the nominated NZ bank account.

Term: This Agreement will commence on the Effective Date and continue until terminated in accordance with its terms. FlipView will continue to bill the Fees to the Customer until this Agreement is terminated in accordance with its terms. The minimum term for use of FlipView is 12 months, and unless notified otherwise, your contract for services will continue thereafter subject to termination on ninety (90) days written notice.

Privacy and Data Security: FlipView is committed to protecting the privacy and confidential information of both you and your personnel. Any information you or your personnel provide to FlipView will be used only as described in the Privacy Policy.

User accounts and security: For your ease of use, when you begin to use the Services, the Administrator will be able to create your own user account and allocate surveys to Survey Participants. You are solely responsible for any and all activity that occurs within your account for the Services including the content of all surveys and reports sent through the Service from your account. Also, you are solely responsible for maintaining the confidentiality and security of your account and password. You may change your password at any time by following the instructions provided on the Site. If you learn of any unauthorized use or any breach of security in your account, user names or passwords, you must notify FlipView immediately. Additional information on data security and privacy can be found in the Privacy Policy.

Licensed Rights: FlipView grants you a limited, non-exclusive, non-transferable, revocable license to:

• access and use the Service for your own lawful, internal business purposes
• compose, send, read, print, save as well as forward electronic content and messages; and
• modify, alter, and copy Reports for the Customer’s own internal business purposes, and solely in accordance with this Agreement.
• You and your personnel, including Survey Participants and End Users, must not resell or make available the Service to any third party or otherwise commercially exploit the Services.

When accessing the Service, you and your personnel must:

• not impersonate another person or misrepresent authorisation to act on behalf of others or us;
• correctly identify the sender of all electronic transmissions;
• not attempt to undermine the security or integrity of the Underlying Systems;
• not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
• not attempt to view, access or copy any material or data other than:
• that which you are authorised to access; and
• to the extent necessary for you to use the Service in accordance with this Agreement; and
• neither use the Service in a manner, nor transmit, input or store any Customer Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, sub-license, or transfer any portion of the Surveys or the Reports.
A breach of any of this Agreement by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of this Agreement by you.
You are responsible for procuring all licences, authorisations and consents required for you and your Personnel to use the Service, including to use, store and input Customer Data into, and process and distribute Customer Data through, the Service.

Modifications: Due to updates and data limitations, FlipView reserves the right to modify and/or discontinue the Service at any time, whether temporarily or permanently, with or without notice to the Customer, and FlipView shall not be liable to you or any third party for any such modification and/or discontinuance of the Service. FlipView further reserves the right to make modifications or additions to this Agreement at its sole discretion, at any time, with or without notice to the Customer. If you continue to use the Service you are deemed to accept such modifications or additions. You accept the Software on an as-is basis and in the event you require any modification to the Software for your particular use, we will provide you with a quote to create the requested modification to the Software. In the event you accept the quote we will amend the Software in accordance with the quote and you must pay the associated fees. You acknowledge that any intellectual property rights attaching to the modification to the Software will be owned exclusively by us and you will have no ownership of such modification or right to use the modification except during the Term and in accordance with the terms of this Agreement. .

Reliance: The information presented in the Dashboard and the Reports is an aggregation of data that you have provided. This data is not independently verified or audited by FlipView. It is your responsibility to ensure that all information provided to FlipView by you or on your behalf (including by any of your directors, officers, employees, contractors and agents) is in all respects accurate, complete and not misleading (whether by omission or otherwise). FlipView does not accept responsibility for the accuracy or completeness of such information, including the Customer Data.

Your responsibilities: You will ensure that the collection, retention and dissemination of information in connection with the Services complies with the Privacy Act and with any other legal requirements governing the collection and use of information, including Personal Information.

Disclosure: The Dashboard and the Reports are designed for the End Users only (or others to whom you grant access to the Dashboard). You must not disclose any Report or other information provided as part of the Services to any other person without our prior written consent (such consent will not be withheld unreasonably). In addition, and without limiting the other provisions of this Agreement, you must not use or disclose FlipView’s name or the output of the Services including the Dashboard and Reports in connection with any prospectus, information memorandum or other offer or marketing document, whether public or private.

Warranties: FlipView represents and warrants that the Services will be provided in a workmanlike manner that conforms to applicable industry standards. Except for the warranty above, FlipView expressly disclaims and excludes all other express or implied representations, warranties and guarantees, including any warranties of merchantability, fitness for a particular purpose, non-infringement and quiet enjoyment. You acknowledge and understand that FlipView is dependent on certain third parties and on matters outside its control when delivering the Services. FlipView makes no warranty that the Services will be uninterrupted, timely, secure, virus-free, error-free, free from black-outs or brown-outs, accurate or reliable. Any material or data obtained or downloaded through the Services, including Surveys, the Dashboard and/or Reports are provided “AS-IS” and downloaded and used at your own risk. You are solely responsible for any damage caused by such material, including any loss of data or damage to your computer systems.
You agree and represent that you are acquiring the Service, and accepting this Agreement, for the purpose of trade. The parties agree, to the maximum extent permissible by law, that the Consumer Guarantees Act and any other applicable consumer protection legislation does not apply to the supply of the Services or this Agreement. The parties agree that it is fair and reasonable that the parties are bound by this Agreement and in particular this clause.

• You acknowledge and agree that FlipView provides a platform from which you may communicate with your key stakeholders. FlipView does not control what and how your personnel, including Survey Participants, communicate. You are solely responsible to evaluate the accuracy, reliability, completeness and usefulness of any Surveys, Survey results and associated Reports.
• You acknowledge that although FlipView will use its reasonable endeavours and due care and skill to ensure that the FlipView content on the Site and available through the Services is accurate and up-to-date, including all FlipView data displayed on the Dashboard, FlipView does not warrant that such content will be complete, uninterrupted or error free.

You acknowledge and agree that:

• you are solely liable and responsible for your business and other activities, and your performance and compliance with laws;
• the Service, including the Dashboard and Reports, is prepared on a general basis and may not be appropriate or complete for your specific circumstances or requirements;
• the Service, Dashboard and Reports are designed to assist you in the conduct of your business activities, which may include acting as a reference source for facilitating legal, regulatory and policy compliance obligations, but you agree that none of the Service, Dashboard or any Reports are designed nor intended to achieve or guarantee such compliance; and
• the legal obligations applicable to you and your business will vary depending on factors pertinent to you and your business, including your business activities, geographic location and the laws, regulations and industry guidelines that may apply in any particular circumstance.

Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you after providing you with reasonable advance notice in writing.

Customer Data and backups: You acknowledge that FlipView will not create backups or otherwise maintain data recovery mechanisms for any of the Customer Data, including User Content (all unless otherwise agreed), and you have sole responsibility for creating, maintaining and verifying any backups of Customer Data.  You acknowledge that FlipView will have no liability to you under any circumstances resulting from any loss of Customer Data, even if such loss is caused or contributed to by an act or omission of FlipView, or any failure of the Service or any App.
You acknowledge that:

• we may require access to the Customer Data to exercise our rights and perform our obligations under this Agreement; and
• to the extent that this is necessary but subject to our confidentiality obligations, we may authorise a member or members of our personnel to access the Customer Data for this purpose.

You must arrange all consents and approvals that are necessary for us to access the Customer Data as described in this Agreement.
You acknowledge and agree that to the extent Customer Data contains Personal Information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act  and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with this Agreement.
You agree that we may collect and store Customer Data (including any personal information) in secure servers in overseas territory and may access that Customer Data (including any personal information) in overseas territory and New Zealand from time to time. For more details please read our Privacy Policy.

Availability: You understand and agree that the Site and the Services use the internet and that the internet is a public communications network that cannot be controlled by FlipView, and any data intended to be delivered to you by means of the Site or the Services may be delayed or may not be delivered.

Liability: FlipView’s or the customer’s maximum aggregate liability under or in connection with this Agreement or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you relating to the Service for a period of 12 months in aggregate.
Neither party is liable to the other under or in connection with this Agreement or the Service for any:

• loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
• consequential, indirect, incidental or special damage or loss of any kind.

• This clause does not apply to limit our liability under or in connection with this Agreement for:

• personal injury or death;
• fraud or wilful misconduct; or

• This clause does not apply to limit your liability:

• to pay the Fees;
• for personal injury or death;
• for fraud or wilful misconduct; or

Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement or the Service.

Indemnity: You agree to indemnify and hold harmless FlipView, its directors, officers, employees and contractors against any loss, damage, cost (including legal costs on a solicitor and own client basis as well as the cost of FlipView’s professional time reasonably incurred in connection with any claims, inquiries, investigations or similar matters), claims or proceedings suffered or incurred by FlipView directly or indirectly in connection with the provision of the Services or this Agreement, including any failure on your part to comply with the terms of this contract.

Intellectual property rights: Subject to sub-clause b below, title to, and all Intellectual Property Rights in, the Service, the Site, and all Underlying Systems (including all Surveys, Reports and Dashboards) is and remains the property of us (and our licensors). You must not dispute that ownership.

• Title to, and all Intellectual Property Rights in, the Customer Data (as between the parties) remains your property. You grant us a limited worldwide, non-exclusive, non-transferable, revocable licence to use, store, copy, modify, make available and communicate the Customer Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Agreement. No further rights in the Customer Data are implied by this Agreement, and should this Agreement expire or be terminated, Flipview will deal with all of its copies (in whole or in part) of the Customer Data as requested by Customer, as soon as reasonably possible after such request is made.

If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):

• you grant us a non-exclusive, royalty-free, transferable, perpetual licence to use that feedback, and anything created as a result of that feedback (including new material, enhancements or modifications to the Services;

You acknowledge that the Site or Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service or the Site does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

Confidentiality: Each party must, unless it has the prior written consent of the other party:

• keep confidential at all times the Confidential Information of the other party;
• effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
• disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, sub-clauses a and b above.

The obligation of confidentiality in sub-clause a does not apply to any disclosure or use of Confidential Information:

• for the purpose of performing a party’s obligations, or exercising a party’s rights, under this Agreement;
• required by law (including under the rules of any stock exchange);
• which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
• which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
• by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this confidentiality clause.

Cancellation: Since the Service is a month-to-month service, you may cancel your account at any time after the initial 12 months on ninety (90) days written notice. Upon receipt of a cancellation request, FlipView will schedule your account for cancellation. Your account will remain accessible and active up until the day before the date of termination. At that time, FlipView will permanently cancel and delete the Customer Data and the Reports from the Service and the Underlying Systems.
You are responsible for downloading and accessing the Customer Data prior to the cancellation of the Service. Please note that until you request cancellation through your account, your account will be charged monthly for your Fees. Inactivity in your account will not constitute a cancellation.

Termination:
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

• the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

• the other party commits a material breach of any other term of this Agreement and that breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
• where for any reason this Agreement becomes void or unenforceable at law.
• the other party repeatedly breaches any of the terms of this Agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
• an Insolvency Event occurs in relation to the other party;

• You may terminate for convenience at any time after the initial 12 months by giving ninety (90) days prior written notice.

• Termination of this Agreement does not affect either party’s rights and obligations that accrued before that termination.

Assignment: Neither party may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).

Governing law and forum for disputes: This Agreement, and the Services is governed by the laws of the Agreement Jurisdiction.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the Agreement Jurisdiction, and any dispute resolution procedure or legal proceedings in connection with this Agreement or the FlipView Service must be conducted in the Agreement Jurisdiction.

Entire Agreement: This Agreement, the Privacy and Data Protection Policy, the Order Page including the Pricing Schedule form the entire agreement between us.

Force Majeure: Neither party will be liable to the other for any failure to fulfil obligations caused by circumstances outside its reasonable control, provided that failure by a party to pay any sum due under this Agreement shall not be treated as being outside that party’s reasonable control.

Privity: No person other than you and us has any right to a benefit under, or to enforce, this Agreement.

Waiver: For either party to waive a right under this Agreement, that waiver must be in writing and signed by FlipView.

Contractor: Except as expressly stated otherwise, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.

Notices: If we need to contact you, we may do so by email or by posting a notice on the Site. You agree that this satisfies all legal requirements in relation to written communications.

Survival Clauses: which, by their nature, are intended to survive termination of this Agreement continue in force, including the Limitation clause.

Severability: If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from this Agreement. The remainder of this Agreement will be binding on you.

Fair Trading Act: The parties agree that the Services are supplied and acquired by each of them in trade within the meaning of the Fair Trading Act 1986, that sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply to this Agreement, and that it is fair and reasonable to exclude their application.

Disclaimer: The information presented in and your use of the Dashboard and the Reports are subject to the agreement between you and Flipview Limited. Without limiting the agreement, the following applies: The Dashboard and Reports are provided as a potential guide to assist you with your business and are not determinative of the state of your business’s affairs. You may only use the Dashboard and Reports for your lawful internal business purposes. You may only share the Dashboard or the Reports with a third party, including potential investors if FlipView agrees in writing. The information presented in your Dashboard and associated reporting is an aggregation of data that you have provided. This data is not independently verified or audited. It is your responsibility to ensure that all information provided by you or on your behalf is in all respects accurate, complete and not misleading (whether by omission or otherwise). FlipView provides no opinions, representations, recommendations or conclusions about the accuracy of financial data, the liquidity of your business, or the susceptibility to or prevalence of fraud within your business. You are solely responsible for ensuring you comply with all applicable laws, including privacy, financial reporting and health, and safety. Copyright 2017 Flipview Limited. All rights reserved.

DEFINITIONS AND INTERPRETATION

• “Admin Account(s)” means the administrative account(s) provided to Customer by FlipView for the purpose of administering the Services.
• “Admin Console” means the online tool provided by FlipView to the Customer for use in managing their administration functions.
• “Administrators” mean the Customer-designated technical personnel who administer the Services on the Customer’s behalf.
• "Agreement Jurisdiction" means New Zealand;
• “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, from time to time.
• “Confidential Information” means information that is not public knowledge and that disclosed by a party to the other party under this Agreement that is marked as confidential or should reasonably be considered confidential under the circumstances. For the avoidance of doubt Confidential Information includes Survey, Administrator, Survey Participant, Report and End User data.
• “Customer Data” means data, including but not limited to email, provided, generated, transmitted or displayed via the Services by Customer or its personnel and includes User Content.
• “Dashboard” means the content the summary reporting that is created upon completion of the surveys.
• “De-identified Content” means content that has all data removed that could identify you or any other person or organisation.
• “Emergency Security Issue” means either:

• Customer’s use of the Service in violation of the FlipView’s terms and conditions, which could disrupt:

• the Services;
• other customer’s use of the Services; or
• the Underlying Systems; or

• unauthorized third party access to the Service.

• “End Users” means the individuals Customer permits to use the Service and access the Dashboard and Reports.
• “End User Account” means a FlipView-hosted account established by Customer through the Service for an End User.
• “Fees” means the amounts invoiced to Customer by FlipView for the Service as described in Schedule 1 or an Order Page.
• “Intellectual Property Rights” includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. “Intellectual Property” has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
• “Notification Email Address” means the email address designated by Customer to receive email notifications from FlipView. Customer may change this email address through the Admin Console.
• “Objectionable” includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
• “Order Page” means the Site order page Customer completes in signing up for the Services or attached to this Agreement, and which contains:

• the Services being ordered;
• Fees;
• number of End User Accounts;
• the applicable form of payment.

• “Personnel” means any employee, officer, agent, contractor, subcontractor, student or volunteer of Customer, and any employee, officer, agent, contractor, subcontractor, student or volunteer of a contractor or subcontractor of Customer.
• “Participant information” means any information captured by a Survey Participant.
• “Privacy Policy” means FlipView’s privacy and data security policies from time to time.
• “Report” means a report generated by the Services following the completion of the survey.
• “SaaS Service” has the meaning set out in this Agreement.
• “Service Pages” mean the Site web pages displaying the Services to End Users.
• “Service” or “Services” has the meaning set out in this Agreement.
• “Site” means the internet site at www.flipview.co.nz, or such other site notified to you by FlipView.
• “Spamming” means sending unsolicited e-mail to mailing lists, individuals, or newsgroups and includes sending unsolicited commercial electronic messages in breach of the
• Spam Act 2003.
• “Survey” means the questionnaire that is completed in order to generate a summary of risks, strengths, weaknesses and opportunities.
• “Survey Participant” means anyone that that has access to complete or review and/or make comment on the Surveys or the Dashboard
• “Suspend” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
• “Taxes” means any duties, customs fees, or taxes (including GST but not including FlipView’s income tax) associated with the sale of the Services, including any related penalties or interest.
• “Third Party Request” means a request from a third party for records relating to your use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the Customer permitting the disclosure.
• “Underlying Systems” means all software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
• “User Content” means any information captured by the Surveys or Survey Participants.

In this Agreement:

• including and similar words do not imply any limit;
• a party includes that party’s permitted assigns;
• a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
• personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include FlipView;
• Words in the singular include the plural and vice versa; and

reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

‍